Monday, February 15, 2010

This morning's New York Times featured another article about Eric Holder's decision to try Khalid Sheikh Mohammed in a civilian court. It's a nice companion to Jane Mayer's piece last week in the New Yorker. Both discuss at length the political tempest in which Mr. Holder now finds himself.

And yeah, duh, it's bad politics.* But I don't want to talk about that. What interests me is the totally crass and craven nature of the opposition to trying KSM in the Southern District of New York. As Mayer's comprehensive piece points out, Holder's investigators have been able to cobble together a much stronger and more compelling case than anything that been extracted by, uh, different means from KSM at Gitmo or elsewhere. And Mayer also describes the downright ineffectual nature of the military commissions that people like Lindsay Graham seem to love so much. You want to convict? You want a tough sentence? Yes? The same military commissions that just released Osama Bin Laden's driver and sent him to Yemen (yes, Yemen)? Okay. Who's soft on terror again?

I have not seen a single legal or tactical argument against a criminal trial for KSM that has any merit whatsoever. If you've seen one, send it to me.

One last thing. If the administration really wanted to play a smart game of politics,** they'd announce that there will be no trial for Khalid Sheikh Mohammed. They'd call a press conference and announce that sometime this Spring they'll tie KSM up to a post at Ground Zero and let the 9/11 families stone him to death. That would be super popular.

I really hope that the next member of the press who interviews Lindsay Graham or Scott Brown or, heck, Rahm Emanuel asks a simple question:

Do you support death by stoning for Khalid Sheikh Mohammed without a trial?

*Which makes the administration's lack of political groundwork for the decision pretty disappointing.

Monday, February 1, 2010

Adam Gaffin at Universal Hub and Dan Kennedy* each report today on the SJC's decision in Fustolo v. Hollander, SJC No. 10485. If you've spent time with me, or read this blog, you probably know that I have a genetic inclination toward a broad interpretation of the First Amendment, especially as it relates to the press. But the decision in the Fustolo case feels right to me.

The issue in the case is whether a person who writes an objective news story is petitioning the government. If she is, the case against her would probably be dismissed in its earliest stages and she would be awarded her attorneys' fees. I agree that the statute is not as artfully crafted as we might like it to be. Especially on this front. But it protects petitioning. A reporter who objectively provides citizens with information about an issue of public concern is performing a valuable service in our democracy. She may be providing information that others use to petition. But she's not petitioning. Which is what the statute protects.

So the most important sentence in the opinion, to me, pops up early on: "she expressly stated in her affidavit that in writing all her articles, she was 'always careful to present an objective description of the subject matter, including the positions of both sides where applicable,' and that while she had personal views on the issues she covered, 'they were not reflected in the articles I wrote.'"

Again: not petitioning. No matter what you think of the plaintiff, no matter what you think of the press, if you're not presenting personal views you just aren't petitioning.

*I can't resist noting that Mr. Kennedy links in his post to an affidavit that he was paid, presumably by Ms. Hollander to the submit to the Court. As with just about everything he writes, it's persuasive and beautifully written. But I'm not so sure it's a particularly helpful document to file in a civil dispute to which he's not a party.